Share purchase - Doubts about the double assessment of real estate transfer tax when there is a time lag between the signing and closing

The Federal Fiscal Court (Bundesfinanzhof, BFH), in proceedings for temporary legal protection, raised doubts in respect of the question as to whether real estate transfer tax may be assessed twice when shares in a GmbH [German private limited company] are purchased and there is a time lag between when the agreement is concluded (the signing) and when the ownership is actually transferred (the closing).

In cases of share transfers (so-called share deals) the legal tax situation is particularly complicated - especially if a corporation has property and, within ten years, there is a change in the shareholders of at least 90% of the shares. Moreover, if the conclusion of the agreement and the share transfer occur on separate dates and if the local tax office is not notified about both events, then there is a risk that real estate transfer tax will be levied twice.

This underlay the BFH ruling of 9.7.2025 (case reference: II B 13/25). Here, the BFH had to decide on a case concerning a buyer who had purchased all the shares in a property-owning GmbH via a notarial agreement of 11.3.2024. Yet, the transfer of the shares in the company did not occur until 29.3.2024 after the purchase price had been paid. On 4.4.2024, the notary notified the local tax office of the purchase agreement, however, no separate notification about the share transfer took place. Subsequently, on 30.5.2024, the local tax office assessed real estate transfer tax twice - once vis-à-vis the GmbH on account of the change of shareholder pursuant to Section 1(2b) of the Real Estate Transfer Tax Act (Grunderwerbsteuergesetz, GrEStG) and once more vis-à-vis the buyer on account of the unification of shares pursuant to Section 1(3) no. 1 GrEStG. The authority refused a request to cancel one of the two assessments and pointed out that the notification of the transfer had been neglected.

The buyer successfully defended herself and the BFH granted a suspension of enforcement. In the opinion of the highest tax court, there is no requirement to apply Section 16(4a) GrEStG in order to amend a tax assessment notice that is subject to a subsequent review because changes can be made to the notice in any case.

Result

For the BFH, the crucial factor is whether levying real estate tax twice is at all allowed if when the local tax office makes its assessment it knows that the transfer of the shares in the GmbH has already occurred. The BFH has thus clarified that in the case of share deals where there is a time lag between the signing and the closing there are considerable legal uncertainties with respect to how this is treated by the tax authorities.